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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lindsay v. Fife Scottish Omnibuses Ltd [A4323_01.html] ScotCS 1 [2002] ScotCS 153 (30th May, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/153.html Cite as: [2002] ScotCS 153

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Lindsay v. Fife Scottish Omnibuses Ltd [A4323_01.html] ScotCS 1 [2002] ScotCS 153 (30th May, 2002)

OUTER HOUSE, COURT OF SESSION
A4323/01	OPINION OF LORD MACFADYEN in the cause THE RIGHT HONOURABLE THE COUNTESS OF LINDSAY Pursuer; against FIFE SCOTTISH OMNIBUSES LTD Defenders:   ________________

Pursuers: Upton; Anderson Strathern, W.S.

Defenders: MacSporran; Simpson & Marwick, W.S.

 

30 May 2002

Introduction

1. In this action the pursuer seeks damages from the defenders in respect of losses which she suffered as a result of an accident which took place on the A915 road on 25 April 2000. On that date a collision occurred between a carriage drawn by a pair of horses driven by the pursuer and a Honda Accord motor car driven by a Mr Donald Nicoll. According to the pursuer's averments, the accident happened because a Stagecoach bus, driven by Robert Imrie, an employee of the defenders acting in the course of his employment with them, overtook the pursuer's carriage in a manner that caused her horses to bolt. It is agreed between the parties that the loss suffered by the pursuer as a result of the accident amounted in total to £21,153, inclusive of interest to 20 May 2002. The issues which remain to be determined are (1) whether the horses were caused to bolt by the manner in which the bus was driven as it overtook them, (2) if so, whether the accident was caused to any extent by negligence on the part of the bus driver, and (3) if so, whether and to what extent it was also contributed to by fault on the part of the pursuer.

The Locus

2. The part of the A915 road which is relevant for the purpose of this action runs generally in a north-easterly direction from Lower Largo towards St Andrews. For traffic travelling towards St Andrews, at a point where the road is joined from the north-west by a minor road (marked on the relevant Ordnance Survey sheet, No. 6/31 of process, as leading to Wester Newburn) the road turns to the right, and then, at a point where it is joined from the east by a minor road marked as leading to Easter Newburn (which I shall call the "Easter Newburn junction"), it turns to the left. The bend to the left continues for a short distance beyond the Easter Newburn junction, then the road runs straight in an approximately northerly direction for a distance of approximately one kilometre, before turning to the right at a bridge over a disused railway. Shortly before that right turn, a minor road leading to Balbaird joins the A915 from the west (and I shall call that the "Balbaird junction"). The straight part of the road is shown in the photographs which are Nos. 6/29/1, 2 and 3 of process. Nos. 6/29/1 and 2 are taken from near to its north end, while No. 6/29/3 is taken from near to its south end.
3. The pursuer resides at Lahill House, Upper Largo. The position of Lahill House can be seen on No. 6/31 of process circled in red. The route which the pursuer took immediately prior to the accident lay by way of the minor roads leading north from Lahill House to the Easter Newburn junction. That route is outlined in red on No. 6/31 of process. At the Easter Newburn junction the pursuer turned right onto the A915. It was her intention to drive along the A915 only as far as the Balbaird junction, and there turn left. It is not disputed that the bus driven by Mr Imrie overtook the pursuer's carriage somewhere along the straight stretch of the road. The precise point at which the overtaking manoeuvre took place is the subject of conflicting evidence, and I shall return to that in due course. It is not, however, disputed that the collision between the pursuer's horses and carriage and Mr Nicoll's car took place at about the Balbaird junction.

The Pursuer and her Horses and Carriage

4. The pursuer is an extremely experienced driver. Carriage driving has been her recreation for over thirty years, i.e. since she was a child. She competes regularly at shows, and has won many prizes. Although the competitive carriage-driving season is from April/May to September/October each year, she practices driving every weekday throughout the year unless prevented from doing so by weather conditions.
5. The carriage which the pursuer was driving at the time of the accident was a lightweight four wheeled exercise vehicle. It is shown (as damaged in the accident) in the photograph No. 6/27 of process. The carriage had a single seat occupied by the driver, and a step at the rear on which a groom stood. At the time of the accident the pursuer was driving, and the groom was Tessa Neil.
6. At the time of the accident the carriage was drawn by two Palomino horses harnessed in tandem, i.e. one behind the other. The horse closer to the carriage and harnessed between the shafts (the wheel horse) was Hansel. The horse further from the carriage (the lead horse) was Flicker. According to the pursuer's evidence, Flicker was the lead horse for two reasons, namely (a) he was marginally the smaller of the two, and as a matter of appearance it was better to have the smaller horse in the lead, and (b) he was the more experienced horse and temperamentally the obvious leader.
7. Flicker was a twenty-one year old part bred Arab cross Irish draught gelding. He had been owned by the pursuer for approximately ten years, and had taken part successfully in many competitions driven by her. They had together won the Scottish Championship, and had been placed at Burleigh. They had won many other shows. Flicker had competed on four or five occasions per annum.
8. The pursuer acquired Hansel in March 1999. He was a Welsh cob cross gelding, who was nine years old. At that time he had no experience of driving, but had taken part in dressage. When the pursuer acquired him, she had him trained for driving at an establishment in Aylesbury operated by David Farms Ltd. She then had Hansel trained to drive in tandem with Flicker by Barry Capstick, a professional driving trainer. That process was completed in October 1999. From then until the date of the accident, the pursuer drove Flicker and Hansel in tandem approximately five times per week.
9. It was the evidence of the pursuer, which I accept, that both horses were, at the time of the accident, experienced in driving in traffic. They were used to public roads. The stretch of road on which the accident happened was one which they had travelled on many previous occasions. It was a regular occurrence for them to be overtaken by a bus on that stretch of road. It was also the evidence of the pursuer, which again I accept, that neither horse had ever been known to bolt, whether while being driven or in other circumstances. She said that she would not have driven them if they had been known to have bolted.

The Accident

10. I have already outlined the route which the pursuer intended to follow on the day of the accident. It was raining quite heavily and the roads were wet. After turning on to the A915 at the Easter Newburn junction, the pursuer reached the straight stretch of road with the horses moving at what she described as a "good working trot". The carriage is equipped with a speedometer (calibrated in kilometres per hour), and it was the pursuer's evidence (broadly confirmed by Tessa Neil) that the pace at which the horses were proceeding equated to approximately 14 k.p.h. (less than 10 m.p.h.). I accept that evidence about the speed at which the carriage was moving before the bus began to overtake. According to the pursuer's evidence, two lorries passed the carriage travelling southwards. Then, about 200 yards along the straight, close to the point at which a parked car is shown in the photograph No. 6/29/3, the bus overtook.
11. The pursuer said that she had not been aware of the approach of the bus before it overtook. It passed and drew back in to the left hand lane of the road. The pursuer was conscious of the roar of the engine of the bus as it passed. There was also a splashing noise, a "swoosh". The horses were sprayed by water thrown up from the road surface by the bus. The horses were, in the pursuer's words, "completely taken by fright, and bolted". She thought Hansel reacted first, since the bus passed him first. Both horses bolted, and began to gallop out of control. She tried to pull them in, and spoke to them. Tessa Neil helped to pull on the reins. They were, however, unable to bring the horses under control. The horses continued to gallop, gaining momentum. After some distance, Flicker began to veer to the right. Eventually, he crossed the centre line of the road, and the collision with Mr Nicoll's car, which by that time had stopped, occurred.
12. The pursuer's account of what happened is broadly confirmed by other evidence. Tessa Neil, whose duty it was as groom to keep a look out behind, looked round shortly after the carriage entered the straight. When she did so the bus was "speeding up to overtake". It had already pulled out from the left hand lane to begin the overtaking manoeuvre. It was between four metres and one bus length away from the carriage. It then "zoomed past". It sprayed water up as it did so. The horses bolted. Her impression was that both horses bolted simultaneously. When she realised what was happening, Tessa Neil grabbed Hansel's reins, and attempted to assist the pursuer to pull the horses up, but to no avail. Miss Neil's evidence differed from the pursuers in that she put the overtaking manoeuvre somewhat closer to the beginning of the straight than the pursuer did, but the difference does not seem to me to be material. Unlike the pursuer, she noticed the car that overtook after the bus. She said that it overtook while the horses were bolting.
13. Mr Nicoll could shed little light on the origins of the accident, but was able to confirm very clearly that the collision took place at the Balbaird junction, and that by then the bus had left the scene. He came round the bend at the bridge at the north end of the straight, travelling at about 25 m.p.h. because of the bend and the weather conditions. He had no recollection of passing the bus, and confirmed that he must have passed it somewhere to the north of the bridge. He saw the horses and carriage coming towards him and slowed down further. He then saw that the horses and carriage seemed to be travelling very fast and swaying from side to side. When they were about 15 yards away, they crossed the centre line of the road, and at that point Mr Nicoll brought his car to a stop. The collision nevertheless occurred.
14. Mr Imrie said that he did not even see the carriage until the bus had travelled some distance down the straight. At that stage the carriage was about half way down the straight. He did not notice that there were two horses. He said that the overtaking manoeuvre took place took place just south of the point where the triangular traffic signs appear on the west side of the road in the photograph No. 6/29/1 of process (they are almost invisible in the distance in No. 6/29/3). After he had overtaken the carriage, but before he had drawn back in to the left hand lane, he looked in his nearside mirror, and saw the horse (presumably actually the lead horse) raise its head to the left. By that time he had passed the place where the car is parked in the photograph No. 6/29/1 of process, and was close to the bridge. He drove on and, at the time, was unaware of the occurrence of the accident.
15. The remaining evidence about the accident was given by Mr and Mrs Smith who were respectively the driver and the front seat passenger in a car which was travelling behind the bus. They both described the bus overtaking the carriage, then, when it had completed its manoeuvre and drawn back in to the left hand lane, their car performing a similar overtaking manoeuvre. Initially, Mr and Mrs Smith spoke to their ten year old daughter, who was in the rear passenger seat, drawing her attention to the horses. Then Mr Smith noticed that the lead horse was galloping and appeared to be out of control, and spoke to Mrs Smith telling her to keep an eye on the horses. She then saw that the horses were galloping erratically and that the pursuer was struggling to control them. She continued to watch through the rear window, and saw the horses veer across and road, and saw the accident happening. Mr Smith also saw the collision in his rear view mirror, and brought his car to a stop, about 50 yards past the Balbaird junction, and some distance from the bridge. He then drove across onto the southbound lane, positioning his car to protect the horses, and switched on his hazard warning lights.
16. From that evidence I have no difficulty in concluding that the bus began its overtaking manoeuvre close to the south end of the straight. I reject Mr Imrie's contrary evidence as being impossible to reconcile with the evidence of the other witnesses. If the manoeuvre had begun close to the triangular traffic signs, there would have been no time or space for the bus to complete its manoeuvre, and Mr Smith to complete a subsequent separate overtaking manoeuvre, before the carriage collided with Mr Nicoll's car at the Balbaird junction. Equally, for the bus to have been beyond the bridge before the collision occurred, and Mr Nicoll to have seen what he did see when he came over the bridge, the bus must have begun overtaking far earlier than Mr Imrie suggested. Mr MacSporran for the defenders accepted that in this respect Mr Imrie's evidence required to be rejected, and in my opinion he was clearly right to do so.
17. I also accept it as proved that it was the bus overtaking the horses and carriage that caused the horses to bolt. There is no alternative cause suggested. Although the defenders' pleadings contain a suggestion that the pursuer simply lost control of the horses, after the overtaking manoeuvre had been completed without adverse effect, that suggestion was not maintained by Mr MacSporran. It is, in my view, most improbable that a driver of the pursuer's skill and experience would simply have lost control of the horses without some unusual external factor operating as the cause. Equally, the evidence was that the horses were well used to being driven on the public roads, and there is no basis for supposing that, in the absence of a specific cause, they would have bolted. Both the pursuer and Tessa Neil unequivocally identify the bus's overtaking manoeuvre as the cause of the horses bolting, and I have no difficulty in accepting their evidence to that effect. Mr and Mrs Smith both observed the horses galloping and appearing to be out of control or difficult to control as their car overtook. That seems to me to be entirely consistent with the cause of their bolting having been the immediately preceding overtaking manoeuvre by the bus. Even Mr Imrie's evidence of seeing the horse raise its head to the left when the bus was about to return to the left hand lane seems to me to be consistent with that cause.

The Law

18. There is, it seems to me, no controversy about the applicable law. The pursuer in her pleadings identifies Mr Imrie's duty to take reasonable care for the safety of other road users. Although the pleadings refer to a duty not to exceed the speed limit, the evidence did not support the view that the bus had been travelling at more than 60 m.p.h., and that aspect of the case of fault was therefore not maintained. The pleadings also alleged that Mr Imrie was in breach of a duty to keep the bus at a safe distance from the horses while overtaking, but that aspect too of the case was not maintained. What was maintained was the allegation that Mr Imrie was negligent in the speed at which he caused the bus to pass the horses. In that connection, reference was made to section 38(7) of the Road Traffic Act 1988 which provides:

"A failure on the part of a person to observe a provision of the Highway Code ... may in any proceedings (whether civil or criminal ...) be relied upon by any party to the proceedings as tending to establish ... any liability which is in question in those proceedings."

Paragraphs 190 and 191 of the Highway Code are in inter alia the following terms:

"190. Animals. When passing animals, drive slowly. Give them plenty of room and be ready to stop. ...

191. Horse riders. Be particularly careful of horses and riders, especially when overtaking. Always pass wide and slow. ... Treat all horses as a potential hazard and take great care."

In essence the pursuer's case was that Mr Imrie had failed to observe those provisions of the Highway Code, and that that failure amounted to negligence. It seems to me to be clear that, when passing the horses and carriage, Mr Imrie was under a duty to drive at a speed which was, in all the circumstances including the weather conditions, a safe speed for a bus to pass horses. Having regard to the terms of the Highway Code, it seems to me to be clear that any driver must be taken to be aware that horses present a potential hazard that requires particular care, and that that involves a need to pass at a slow speed. It remains a matter of circumstance what speed is slow enough to satisfy that need.

The Speed of the Bus

19. The language in which the pursuer in her evidence initially described the incident contained an implication of excessive speed on the part of the bus. She said that it "shot past". She went on to say that buses normally passed slowly, and described how passengers often waved, and her groom would normally signal an acknowledgement to the driver as he passed. When asked how fast the bus was travelling, she estimated between 48 and 58 m.p.h. She said: "It was the fastest I have ever had a large vehicle go past me". She described its speed as "far too fast", and as "reckless". When it was put to her that it was the defenders' case that the bus had passed slowly, she said that that was "preposterous". Under cross-examination, the pursuer accepted that it was difficult for her to judge the speed of a faster moving vehicle from a carriage travelling at 14 k.p.h. She accepted that the bus may have been travelling at 20 m.p.h. at the bends south of the straight. When it was suggested to her that the bus and the Smiths' car had been travelling at between 30 and 40 m.p.h., when they overtook she said that it could not have been as slow as that.
20. Tessa Neil said that the bus "zoomed past us". She estimated its speed as more than 40 m.p.h., accepting that that was only a rough estimate. She said that the bus did not slow down to overtake. Generally buses slowed down to overtake, and did so at an acceptable speed. Mr Imrie's bus was not travelling slowly. Like the pursuer, she described its speed as "reckless". When it was put to her that the bus might have been travelling at 30 m.p.h., she said that her rough estimate was more up towards 40 m.p.h. She said that she was unsure of its speed in miles per hour, but that it was going fast.
21. Mr Imrie said that he had to "slow right down" on the bends to the south of the straight. His speed on those bends was about 20 m.p.h. because they were quite sharp. He said that he never travelled above 35 m.p.h. on the straight stretch of the road because it was not a very good road, with potholes and bumps. He said that as he approached the carriage, the groom signalled to him to slow down, and he therefore braked. He explained that he had to brake so as to cause the automatic transmission to change down a gear. He then proceeded to overtake. He estimated his speed at between 25 and 30 m.p.h., then a few minutes later gave a revised estimate of between 20 and 25 m.p.h. It was only an estimate, because he did not actually notice what his speed was. He said there was no way he would drive at 48 to 58 m.p.h. on that road. Under cross examination, he said that he had accelerated to about 30 to 35 m.p.h. by the time he caught up with the carriage, but had slowed down to about 20 m.p.h. to overtake. He had never driven at 50 m.p.h. on that road. He was not going fast enough for water to be splashing up.
22. Mrs Smith, who has been a car driver for eighteen years, said that her estimate of the speed at which their car was following the bus before the incident was about 30 m.p.h. She was not familiar with the road, and had no recollection of the bends before the straight. She expressed the view that the bus overtook "in a safe manner" (that observation being volunteered before she had been asked for any comment on the quality of Mr Imrie's driving). The bus did not go too near the carriage. A signal was given before the overtaking manoeuvre began. She made no mention of seeing brake lights illuminated on the bus, and on the contrary, said that the speed had to be increased to get past the horses. In cross-examination Mrs Smith said that the bus did not appear to be going at more than 40 m.p.h. In re-examination, when being asked about the weather conditions, she said that it was raining at the time of the overtaking "because I remember there was a lot of spray".
23. Mr Smith has been a driver for 29 years, latterly driving some 23,000 to 24,000 miles a year. He was at one time a bus mechanic. His impression was that on the bends approaching the straight he was following the bus, which was following the carriage. He saw the carriage ahead of the bus at some stage while he was negotiating the bends. That is possible, if the carriage had emerged from the Easter Newburn junction while Mr Smith's car was on one of the bends that lie to the south of that junction, but in so far as Mr Smith appeared to think that his speed had been dictated by the carriage on the road to the south of Easter Newburn junction he was plainly mistaken. His estimate of his speed at that stage - 30 m.p.h. or less - is also inconsistent with its having been dictated by the carriage if the pursuer's estimate of the speed of the carriage is correct. On the straight, the bus indicated and pulled out to overtake. Like his wife, Mr Smith made no mention of the bus braking. He said, however, that he saw nothing untoward in the bus's overtaking manoeuvre, or the speed at which it was undertaken. He declined to estimate the bus's speed on overtaking, but estimated that he himself overtook at between 35 and 40 m.p.h. He disagreed with the proposition that the bus's speed was reckless.

Was the Bus Driver Negligent?

24. Mr Imrie was in the best position to know how fast he was travelling when he overtook the carriage, because he could have looked at his speedometer as he did so. His evidence, however, was that he did not notice his actual speed. I am prepared to accept that he was travelling at between 20 m.p.h. (his own estimate) and 30 m.p.h. (Mr Smith's estimate) on the bends to the south of the Easter Newburn junction. I accept that he had accelerated once on the straight. I reject his evidence that he braked before overtaking the carriage. That is contrary to the evidence of Tessa Neil and Mr and Mrs Smith, and in particular is inconsistent with the Smiths' not mentioning seeing brake lights showing on the bus. I find his evidence that he never travelled at more than 35 m.p.h. on the straight surprising. It was a downhill straight about a kilometre long on an 'A' class road. Mr Imrie's evidence that the surface was poor was not supported by PC Haig. It therefore seems to me to be improbable that he generally and routinely travelled as slowly as 35 m.p.h. here. More generally, given that his evidence about where the overtaking manoeuvre took place falls to be rejected (as Mr MacSporran accepted), and given that his evidence of speed is to some extent bound up with that version of events, it seems to me that I should be slow to accept as reliable Mr Imrie's estimate of his speed while overtaking.
25. The effect of the evidence of Mr and Mrs Smith seems to me to be mixed. On the one hand, their evidence in my view supports, directly or indirectly, the proposition that the bus overtook at between 30 and 40 m.p.h. having accelerated to overtake rather than having braked before doing so. On the other hand, they both express the opinion that there was nothing wrong with the way the bus was driven as it overtook the carriage. The additional element which Mrs Smith's evidence provides is her comment about there being a lot of spray. Although she did not expressly relate that to the bus, it seems to me to be reasonable to suppose that the spray to which she referred was being thrown up by the vehicle in front of the one in which she was travelling, namely the bus.
26. It was submitted that the pursuer and her groom were ill-placed to form a reliable estimate of the speed of the bus. That point is in my view particularly well-founded in relation to the pursuer, who did not see the bus until it drew level with her. It is less well-founded in relation to Tessa Neil, who saw the bus as it began the overtaking manoeuvre. I do not consider that it would be safe to treat as reliable the pursuer's estimate of the bus's speed as 48 to 58 m.p.h. I accept it as a bona fide estimate, but I do not think that I can treat it as reliable. Tessa Neil's estimate of over 40 m.p.h. is perhaps closer to the range supported by the Smiths, but she readily accepted that it was only a rough estimate.
27. It seems to me that what is of more significance than the various estimates of the bus's speed expressed in miles per hour is the evidence given by the pursuer and Tessa Neil of the impression made on them by the overtaking manoeuvre undertaken by Mr Imrie when compared to the way in which they were used to being overtaken by buses on that road. The background is that the horses were regularly passed by buses on the road, the buses passed slowly, and the horses were not upset. In contrast, the pursuer described this occasion as involving the fastest speed at which a large vehicle had ever overtaken her. Tessa Neil likewise said that buses normally passed slowly, but this one was not going slowly. In contrast to all the previous occasions on which the horses had been passed by buses, this was the one occasion on which they were frightened and caused to bolt. That in itself, in my view, casts light on whether the speed of the bus was excessive. When the evidence about the horses being splashed, supported by Mrs Smith's evidence of there being a lot of spray, is added to the picture, it in my view confirms the impression that the speed was excessive.
28. I do not consider that the evidence is clear enough to justify a specific finding as to the speed at which the bus overtook the carriage. I am, however, satisfied that the bus was travelling faster than Mr Imrie claimed. As I have already mentioned, I reject his evidence that he braked before passing the carriage, and find on the contrary that he was in fact accelerating as he did so. I find in addition, rejecting Mr Imrie's evidence that he was not going fast enough to throw up spray, that as he overtook the horses the wheels of the bus threw up surface water which splashed them. I note the Smith's views that there was nothing untoward about the way in which the bus overtook the horses. I do not feel obliged, however, to accept their assessment. It seemed to me that Mrs Smith's view was largely an expression of her observation that Mr Imrie signalled before starting to overtake, passed the carriage and horses with ample clearance, then returned in an appropriate way to his own lane. Those, however, are not the aspects of the manoeuvre that are criticised. In Mr Smith's case, his view may have been coloured by the fact that he proceeded to pass the carriage and horses at what was probably much the same speed as the bus. Whether that is so or not, I am more influenced by the contrast between on the one hand the pursuer's ordinary experience of being passed by a bus, and the horses' normal undisturbed reaction to the event, and on the other hand the impression of greater speed on this occasion and the dramatically different reaction on the part of the horses. I conclude that I am justified in finding that Mr Imrie did not properly observe the provisions of paragraphs 190 and 191 of the Highway Code in that he did not drive slowly when passing the horses and carriage. It seems to me to be clear that he could have driven more slowly than he did, and that if he had done so, his passage would have been less frightening to the horses and would not have splashed them with surface water. I consider that it is going much too far to describe Mr Imrie's driving as "reckless", at least in the sense in which that word is used in the law. I do, however, conclude that in the circumstances Mr Imrie drove with less than reasonable care.

Contributory Negligence

29. Although the defenders plead that the pursuer caused or contributed to causing the accident by her own fault, that plea was not maintained at the proof. The issue therefore does not require to be considered.

Damages

30. Damages are agreed in the following sums:

Solatium	£1,500
Interest thereon	130
Expenses and loss of property	3,406
Interest thereon	545
Loss in respect of horses	13,700
Interest thereon	1,872
TOTAL	£21,153

Expert Evidence

31. I should record that at the commencement of the proof Mr MacSporran moved for leave to call the evidence of an expert witness whose name had not been included in the list of witness lodged under Rule of Court 43.26(1) (albeit the list had mentioned "a carriage driving expert"), and the substance of whose evidence had not been disclosed as required by Rule 43.27(1). Nothing that Mr MacSporran said in support of his motion seemed to me adequately to explain the non-compliance with Rule 43.27. Although the expert in question was a substitute for the expert originally intended, and had given his views only on the eve of the diet of proof, there had been no intimation of the substance of the earlier expert's evidence either. Mr Upton, for the pursuer, submitted that the defenders had failed to show special cause in support of their motion for leave to lead the witness, as required by Rule 43.27(2). He cited McGunnigal v D B Marshall (Newbridge) Ltd 1993 SLT 769 and Matheson v Press Offshore Ltd 1992 SLT 288. In my view nothing that Mr MacSporran said amounted to special cause. The pursuer is in my view entitled to expect proceedings to be conducted in accordance with the relevant rules. Had leave been given, time would have been lost in giving the pursuer the opportunity of considering an outline of the proposed expert witness's evidence. In these circumstances I refused Mr MacSporran's motion. If the only failure had been the failure to name the witness in the witness list, I would have allowed his evidence to be led.

Result

32. For the reasons which I have given I find it proved that the accident was caused by negligence on the part of Mr Imrie. I shall therefore sustain the pursuer's first plea-in-law, repel the defenders' pleas-in-law, and grant decree for the agreed sum of £21,153, with interest on £18,606 thereof at the rate of 8% a year from the date of decree until payment.
33. Counsel were agreed that expenses should follow success. I shall therefore find the defenders liable to the pursuers in the expenses of process, so far as not already dealt with.